Citation Nr: 9831124
Decision Date: 10/20/98 Archive Date: 10/26/98
DOCKET NO. 97-32 157A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to service connection for residuals, right
shoulder injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Tsopei Robinson, Associate Counsel
INTRODUCTION
The veteran had active duty from July 1979 to June 1983.
This matter comes before the Board of Veterans’ Appeals
(Board) from a September 1997 rating determination of a
Department of Veterans Affairs (VA) Regional Office (RO).
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he sustained an injury to his right
shoulder while on leave during service, but did not report
the injury because he did not begin to experience symptoms
until a few months after separation from service. He asserts
that he has a current right shoulder disability that is the
result of the injury during service. He also maintains that
VA should assist him with the development of his claim by
obtaining prison medical records.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1998), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran has not met the initial burden of submitting
evidence which is sufficient to justify a belief by a fair
and impartial individual that the claim for service
connection for residuals, right shoulder injury is well
grounded.
FINDING OF FACT
There is no competent evidence of a nexus between a current
right shoulder disability and service.
CONCLUSION OF LAW
The claim for service connection for residuals, right
shoulder injury is not well grounded. 38 U.S.C.A. § 5107
(West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran’s service medical records are negative for
complaints or treatment for a right shoulder injury or
residuals thereof. The veteran’s separation examination
showed that the upper extremities were normal.
VA medical records dated from June to August 1997 show that
the veteran was seen with complaints of persistent and
increasing pain at the acromioclavicular joint. The
diagnosis was right shoulder pain status post
acromioclavicular separation. In June 1997, it was reported
that the veteran had dislocated the acromioclavicular (AC)
joint 14 year earlier. In August 1997, it was noted that the
veteran had a history of AC joint separation in 1983. The
assessment was right shoulder pain, status post AC joint
separation.
Analysis
The threshold question that must be resolved with regard to
each claim is whether the appellant has presented evidence
that the claim is well grounded; that is, that the claim is
plausible. If he has not, his appeal fails as to that claim,
and VA is under no duty to assist him in any further
development of that claim. 38 U.S.C.A. § 5107(a); Murphy v.
Derwinski, 1 Vet. App. 78 (1990).
Case law provides that, although a claim need not be
conclusive to be well grounded, it must be accompanied by
evidence. A claimant must submit supporting evidence that
justifies a belief by a fair and impartial individual that
the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261,
262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992).
In order for a claim to be well grounded, there must be
competent evidence of current disability (a medical
diagnosis); of incurrence or aggravation of a disease or
injury in service (lay or medical evidence); and of a nexus
between the in-service injury or disease and the current
disability (medical evidence). Caluza v. Brown, 7 Vet. App.
498 (1995).
In order to be entitled to service connection for a disease
or disability, the evidence must reflect that a disease or
disability was either incurred in or aggravated by military
service. 38 U.S.C.A. § 1131 (West 1991).
Under the provisions of 38 C.F.R. § 3.303(b), chronic disease
shown as such in service (or within the presumptive period
under § 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. This rule does not mean that any manifestation of
joint pain, any abnormality of heart action or heart sounds,
any urinary findings of casts, or any cough, in service will
permit service connection of arthritis, disease of the heart,
nephritis, or pulmonary disease, first shown as a clear-cut
clinical entity, at some later date. For the showing of
chronic disease in service there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "Chronic." When
the disease identity is
established (leprosy, tuberculosis, multiple sclerosis,
etc.), there is no requirement of evidentiary showing of
continuity. Continuity of symptomatology is required only
where the condition noted during service (or in the
presumptive period) is not, in fact, shown to be chronic or
where the diagnosis of chronicity may be legitimately
questioned. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim.
The chronicity provision of § 3.303(b) is applicable where
evidence, regardless of its date, shows that a veteran had a
chronic condition in service or during an applicable
presumption period and still has such condition. Such
evidence must be medical unless it relates to a condition as
to which, under the Court's case law, lay observation is
competent. If the chronicity provision is not applicable, a
claim may still be well grounded or reopened on the basis of
§ 3.303(b) if the condition is observed during service or any
applicable presumption period, continuity of symptomatology
is demonstrated thereafter, and competent evidence relates
the present condition to that symptomatology. Savage v.
Gober, 10 Vet. App. 488, 498 (1997).
Where the determinant issue involves a question of medical
diagnosis or medical causation, competent medical evidence to
the effect that the claim is plausible or possible is
required to establish a well-grounded claim. Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993). The United States Court of
Veterans Appeals (Court) has held that a lay party is not
competent to provide probative evidence as to matters
requiring expertise derived from specialized medical
knowledge, skill, expertise, training, or education.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).
In the instant case, there is no evidence to support the
veteran’s contention that he incurred a right shoulder injury
during service. Nonetheless, he would be competent to report
that he experienced such an injury. He would not be
competent to provide evidence linking that injury to his
current residuals, right shoulder injury. The veteran as a
lay person is not competent to render an opinion as to
medical causation or diagnosis. Grottveitt; Espiritu v.
Derwinski, 2 Vet. App. 492.
The veteran is competent to report that he experienced a
right shoulder injury during service. VA outpatient
treatment records provide competent evidence of a current
right shoulder disability. Accordingly, two of the three
Caluza requirements for a well-grounded claim have been met.
The VA treatment records also report a history of
acromioclavicular (AC) joint separation in 1983. However,
this history does not serve to show an inservice right
shoulder injury or provide a nexus between the current
disability and service. The simple transcription of a
medical history supplied by the veteran does not transform
that history into competent medical evidence. LeShore v.
Brown, 8 Vet. App. 406 (1995). It is obvious that the
history reported in the outpatient treatment records
constitutes such a transcription. The records report no
other source than the veteran for the medical history
recorded.
In any event the history recorded at the time of the VA
outpatient treatment, even if accepted on its face, does not
link the right shoulder injury with service. While the
veteran’s period of active service extended into 1983, he has
reported that he sustained a right shoulder injury after
service in 1983. Thus the history reported in the VA
outpatient treatment records does not necessarily refer to an
inservice injury. In fact, the VA treatment records make no
specific reference to service. Equally important, is the
fact that the VA treatment records do no specifically link
the current right shoulder disability to the reported history
of injury in 1983. There is no other competent evidence
linking the current right shoulder disability to service.
As discussed above, the veteran is competent to report a
continuity of symptomatology from the time of his claimed
inservice injury up to the present. However, in this case he
has reported that his symptoms did not begin until some time
after service. There is, therefore, no continuity of
symptomatology.
In view of the foregoing, the Board finds no duty to assist
him with the development of his claim under the provisions of
38 U.S.C.A. § 5107(a), with respect to the veteran’s claims.
Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Beausoliel v.
Brown, 8 Vet. App. 459 (1995). The veteran has contended
that VA was obligated to assist him by securing medical
records for his period of incarceration beginning in 1985.
Since the claim is not well grounded there is no duty to
assist him with the development of his claim.
The Court has held that where a claim is not well grounded,
VA may have a duty to inform the veteran of the evidence
necessary to render the claim well grounded. 38 U.S.C.A.
§ 5103 (West 1991); Robinette v. Brown, 8 Vet. App. 69
(1995). In this case the veteran has not reported the
existence of evidence which could serve to render his claim
well grounded. According to the veteran, his prison medical
records would show that he was found to have an “old” right
shoulder injury. This record would not provide the necessary
nexus evidence because it does not relate the old injury to
service. The veteran has reported two post service shoulder
injuries in 1983 and 1984. A reference to an “old” injury
without any specific information as to when it occurred would
not link the injury to service. Such evidence would also not
serve to link the “old” injury to any current right
shoulder disability.
The veteran has neither presented, nor reported the existence
of, competent evidence of a nexus between residuals, right
shoulder injury and active service. Consequently, the Board
finds that the claim for residuals, right shoulder injury is
not well grounded and must be denied. 38 U.S.C.A. §§ 1131,
5107(a).
ORDER
Service connection for residuals, right shoulder injury is
denied.
Mark D. Hindin
Member, Board of Veterans' Appeals
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1998), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -